What happens if a benefit claim is filed after the required time period?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

If a benefit claim is filed after the required time period specified in 37 CFR 1.78, the applicant must file a petition for an unintentionally delayed benefit claim. The MPEP states:

“If a benefit claim is filed after the required time period and without a petition as required by 37 CFR 1.78, the applicant should be informed that the benefit claim was not entered and that a petition needs to be filed using form paragraph 2.39.”

The petition must include:

• The reference to the prior application (unless previously submitted)
• A petition fee under 37 CFR 1.17(m)
• A statement that the entire delay was unintentional

The Director may require additional information to determine if the delay was unintentional.

For more information on 37 CFR 1.78, visit: 37 CFR 1.78.

For more information on unintentional delay, visit: unintentional delay.